AGREEMENT AND RELEASE
CONSULT WITH AN
ATTORNEY BEFORE SIGNING THIS AGREEMENT AND RELEASE.
BY SIGNING THIS
AGREEMENT AND RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL
RIGHTS.
This is an agreement and
release (the ‘‘Agreement’’) between
Creative Enterprises International, Inc., its stockholders (solely
in their capacity as stockholders of Creative Enterprises
International, Inc.), subsidiaries, affiliates, divisions,
successors and assigns, their respective past and present officers,
directors, employees, agents, attorneys, whether as individuals or
in their official capacity, and each of their respective successors
and assigns (hereinafter collectively referred to as
‘‘CEI’’ or the
‘‘Company’’) and by his own free will,
Christopher Durkin (‘‘Durkin’’ or
‘‘Employee’’). As used herein, the term
‘‘Execution Date’’ shall mean the later of
the two dates on which this agreement has been executed by Employee
and CEI, as specified on the signature page of this
agreement.
WHEREAS,
Durkin has been serving
as the Chief Executive Officer and a member of the Board of
Directors of the Company, and
WHEREAS,
Durkin desires to resign
his employment with, and position on the Board of Directors of, the
Company upon the terms and condition set forth herein,
NOW,
THEREFORE, in
consideration of the covenants and promises contained herein and
for other good and valuable consideration, receipt of which is
hereby acknowledged, Employee and the Company (who hereinafter
collectively may be referred to as the
‘‘Parties’’) hereby agree as
follows:
1. Employee
acknowledges and agrees that effective upon the Employee’s
receipt of the cash payment described in Section 2(a) below,
Employee’s employment with the Company in all capacities, and
Employee’s service on the Board of Directors of the Company,
is terminated (the ‘‘Termination
Date’’).
2. In
consideration for (i) Employee’s execution of this Agreement
and (ii) the release of claims against the Company, the Company
will pay or issue to Employee the following:
a. An
aggregate amount of $32,500.00 Dollars (‘‘Severance
Payment’’), payable in one lump-sum payment on the
Termination Date.
b. a total
of 300,000 shares of Common Stock as additional consideration for
services rendered to the Company by Employee during the term of
Employee’s employment with the Company. The Company will
issue the Common Stock Certificate to Employee within five (5) days
of the Termination Date.
Employee agrees and
acknowledges that the Company’s payment of the compensation
described in this Section 2 is in lieu of all other compensation to
which Employee may have been entitled.
3. Except as
otherwise expressly provided in this Agreement, there shall be no
other payments or benefits payable to Employee, including but not
limited to, salary, bonuses, commissions, finder’s fees
and/or other payments.
4. To the
extent Employee has unreimbursed business expenses, incurred
through the Termination Date, Employee must promptly submit the
expenses with all appropriate documentation; those expenses which
meet the Company’s guidelines will be reimbursed. Any expense
account that Employee has with the Company terminates effective on
the Termination Date, and any expenses already incurred will be
reviewed and processed in accordance with the policies and
procedures of the Company. No new expenses may be incurred after
the Termination Date. Employee agrees to promptly pay any
outstanding balance on these accounts that represent
non-reimbursable expenses. Company will pay accepted expenses
within twenty (20) business days from the Termination Date, in
accordance with the Company’s expense reimbursement
guidelines existing as of the date that this Agreement is executed
by both the Company and Employee.
5. Employee
understands that this Agreement does not constitute an admission by
the Company of any liability, error or omission, including without
limitation, any: (a) violation of any statute, law, or regulation;
(b) breach of contract, actual or implied; or (c) commission of any
tort.
1
6. Employee
acknowledges that the consideration provided in this Agreement
exceed that to which Employee would otherwise be entitled under the
normal operation of any benefit plan, policy or procedure of the
Company or under any previous agreement (written or oral) between
Employee and the Company. Employee further acknowledges that the
agreement by the Company to provide consideration pursuant to this
Agreement beyond Employee’s entitlement is conditioned upon
Employee’s release of all claims against the Company and
Employee’s compliance with all the terms and conditions of
this Agreement.
7. Arbitration:
a. The
Parties specifically and knowingly and voluntarily agree to
arbitrate any controversy, dispute or claim which has arisen or
should arise in connection with Employee’s employment, the
cessation of Employee’s employment, or in any way related to
the terms of this Agreement. The Parties agree to arbitrate any and
all such controversies, disputes, and claims before a single
arbitrator in the State of New York in accordance with the Rules of
the American Arbitration Association. The arbitrator shall be
selected by the Association and shall be an attorney-at-law
experienced in the field of corporate law and admitted to practice
in the State of New York. In the course of any arbitration pursuant
to this Agreement, Employee and the Company agree (i) to request
that a written award be issued by the arbitrator and (ii) that each
side is entitled to receive any and all relief it would be entitled
to receive in a court proceeding. The Parties knowingly and
voluntarily agree to enter into this arbitration clause and, except
for claims contemplated in Section 7(c) below, waive any rights
that might otherwise exist to request a jury trial or other court
proceeding. This paragraph is intended to be both a post-dispute
and pre-dispute arbitration clause. Any judgment upon any
arbitration award may be entered in any court, federal or state,
having competent jurisdiction of the parties.
b. The
Parties’ agreement to arbitrate disputes includes, but is not
limited to, any claims of unlawful discrimination and/or unlawful
harassment under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act 1967, as amended,
the Americans with Disabilities Act, the New Jersey and New York
Civil Rights Laws, the New Jersey Law Against Discrimination, the
New York Executive Law, the New York City Human Rights Law, the New
Jersey Conscientious Employee Protection Act, the New Jersey Family
Leave Act, or any other federal, state or local law relating to
discrimination in employment and any claims relating to wage and
hour claims and any other statutory or common law
claims.
c. Notwithstanding
the foregoing, Employee acknowledges and agrees that the breach by
Employee of the non-disparagement, confidentiality,
non-competition, or cooperation obligations (as provided by
Paragraphs 8 – 13 of this Agreement) will cause the Company
irreparable injury not compensable by money damages and therefore,
the Company will not have an adequate remedy at law. Accordingly,
if the Company institutes an action or proceeding to enforce such
obligations, it shall be entitled to injunctive or other equitable
relief to prevent or curtail any such breach, threatened or
actual.
8. Employee
and Company agree that the terms and existence of this Agreement
are and shall remain confidential and agrees not to disclose any
terms or provisions of this Agreement, or to talk or write about
the negotiation, execution or implementation of this Agreement,
without the prior written consent of the other, except (a) as
required by law; (b) as required by regulatory authorities,
including as may be required under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the U.S.
Securities and Exchange Commission promulgated thereunder; (c) as
required within the Company to process this Agreement; or (d) in
connection with any arbitration or litigation arising out of this
Agreement. Anything herein to the contrary notwithstanding,
Employee may disclose the terms of this Agreement to
Employee’s immediate family, accountant or attorney, provided
they are made aware of and agree to the confidentiality
provisions.
9. The
Employee further agrees that he shall not, at any time before or
after the Termination Date, make use of or disclose to any person,
corporation, or other entity, for any purpose whatsoever, any trade
secret or other confidential and/or proprietary information of or
concerning the Company’s business, finances, marketing,
technology, software, accounting and other information of the
Company
2
and its subsidiaries,
including information relating to any customer of the Company or
any other nonpublic business information of the Company and/or its
subsidiaries disclosed to, prepared by or otherwise learned as a
consequence of Employee’s employment with the Company
(collectively referred to as the ‘‘Proprietary
Information’’). For the purposes of this Agreement,
trade secrets and confidential information shall mean information
disclosed to the Employee or known by him as a consequence of his
employment by the Company, whether or not pursuant to this
Agreement, and not generally known in the industry. The Employee
acknowledges that Proprietary Information, as it may exist from
time to time, is a valuable and unique asset of the Company, and
that disclosure of any such information would cause substantial
injury to the Company. Trade secrets and confidential information
shall cease to be trade secrets or confidential information, as
applicable, at such time as such information becomes public other
than through disclosure, directly or indirectly, by Employee in
violation of this Agreement. If Employee is requested or required
(by oral questions, interrogatories, requests for information or
document subpoenas, civil investigative demands, or similar
process) to disclose any Proprietary Information, Employee shall,
unless prohibited by law, promptly notify the Company of such
request(s) so that the Company may seek an appropriate protective
order.
10.
Employee agrees that in consideration for
the payments and other consideration provided in this Agreement
Employee will not, for a period of one year following the
Termination Date, directly or indirectly, (a) enter into or become
associated with or engage in any other business (other than as an
owner of 2% or less of the stock of a public corporation), which
business is primarily involved in (i) the business of
manufacturing, distributing, marketing or selling bottled waters or
dietary supplements; or (ii) is otherwise engaged in the same or
similar business as the Company in direct competition with the
Company, or which the Company was in the process of developing
during the term of Employee’s employment with the Company (a
‘‘Competitive Business’’); (b) (i) solicit
business from or perform services for, or for the benefit of, any
client or account of CEI with which Employee had contact,
participated in the contact, or about which Employee had knowledge
of Confidential Information by reason of Employee’s
employment with CEI, or (ii) solicit business from or perform
services for, or for the benefit of, any client or account which
was pursued by CEI and with which Employee had contact,
participated in the contact, or about which Employee had knowledge
of Proprietary Information by reason of Employee’s employment
with CEI; provided that such business or services solicited or
offered would be deemed a Competitive Business at the time of such
solicitation or offer, (c) develop, design, manufacture or sell
products or services based on the Proprietary Information; (d)
interfere in any manner with the business of CEI; or (e) solicit,
hire, attempt to solicit or hire, or participate in any attempt to
solicit or hire, for any non-CEI affiliated entity, any person who
on or during the six (6) months immediately preceding the date of
such solicitation or hire is or was an officer, employee or
consultant of CEI, or which the Employee was aware was being
actively recruited by CEI.
11. &nbs
